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July 11, 1995

 

 

Mr. Don Dzikowski
Reporter
Westchester County Business Journal
22 Saw Mill River Road
Hawthorne, NY 10532-1510

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Dzikowski:

I have received your letter of June 29, as well as various related materials. You have sought assistance concerning your requests for records of the Town of Harrison.

One request involves "an update of the town's litigation/legal fees expended so far on the Peter Gache litigations to the lawfirm of Skadden, Arps, Slate, Meagher & Flom." Although you received information from the Town Attorney responsive to a similar request in February of 1994, he wrote that the request at issue "is denied as it does not reasonably describe any documents." A second request referred to a recent article in the New York Times indicating that the Town "conducted its own tests which show no hazardous materials on the [Gache] site." The article also includes a statement by the Town Supervisor that there is "clear, compelling" evidence that the site contains neither hazardous nor toxic materials. You asked for records "relating to the town's purported testing and environmental assessments of the dump on Peter Gache's property..." In response to the request, the Town Attorney wrote: "In order to permit us to properly respond to your request, kindly specify the records you are seeking."

In this regard, I offer the following comments.

First, by way of background, when the Freedom of Information Law was initially enacted in 1974, it required that an applicant request "identifiable" records. Under that standard, without knowledge of the existence, the name, title or specific contents of records, applicants frequently were unable to identify the records sought. Often applicants were faced with what was characterized as a "catch-22"; while they might have known that records in their area of interest were maintained by an agency, unless they could identify the records with particularity, they could not submit legally sufficient requests. Nevertheless, the original Freedom of Information Law was repealed and replaced by the current version in 1978. Since then, §89(3) of the Law has merely required that an applicant "reasonably describe" the records sought. As such, an applicant is not required to request "identifiable" records or "specify" the records in which he or she may be interested. Moreover, it has been held by the Court of Appeals, the State's highest court, that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

From my perspective, if your request involving expenditures for legal fees in 1994 reasonably described the records, your recent request for an update of the 1994 response would also be appropriate. Additionally, based on the preceding remarks, assuming that the Town can locate the records concerning testing on the Gache property to which the Supervisor alluded, I believe that your request would have met the standard of reasonably describing the records.

Second, with respect to rights of access, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

With respect to payments to a law firm, the judicial interpretation of the Freedom of Information Law indicates that the information sought must be disclosed. A recent decision involved a request for "the amount of money paid in 1994" to a particular law firm "for their legal service in representing the County in its landfill expansion suit", as well as "copies of invoices, bills, vouchers submitted to the county from the law firm justifying and itemizing the expenses for 1994" (Orange County Publications v. County of Orange, Supreme Court, Orange County, June 15, 1995). Although monthly bills indicating amounts charged by the firm were disclosed, the agency redacted "'the daily descriptions of the specific tasks' (the description material) 'including descriptions of issues researched, meetings and conversations between attorney and client'." The County offered several rationales for the redactions; nevertheless, the court rejected all of them, in some instances fully, in others in part.

The first contention was that the descriptive material is specifically exempted from disclosure by statute in conjunction with §87(2)(a) of the Freedom of Information Law and the assertion of the attorney-client privilege pursuant to §4503 of the Civil Practice Law and Rules (CPLR). The court found that the mere communication between the law firm and the County as its client does not necessarily involve a privileged communication; rather, the court stressed that it is the content of the communications that determine the extent to which the privilege applies. Further, the court distinguished between actual communications between attorney and client and descriptions of the legal services provided, stating that:

"Only if such descriptions can be demonstrated to rise to the level of protected communications, can respondent's position be sustained.

"In this regard, the Court must make its determination based upon the established principal that not all communications between attorney and client are privileged. Matter of Priest v. Hennessy, supra, 51 N.Y.2d 68, 69. In particular, 'fee arrangements between attorney and client do not ordinarily constitute a confidential communication and, thus, are not privileged in the usual case' (Ibid.). Indeed, as the Court determined in Matter of Priest v. Hennessy, supra,

[a] communication concerning the fee to be paid has no direct relevance to the legal advice to be given. It is a collateral matter which, unlike communications which relate to the subject matter of the attorney's professional employment is not privileged. Id. at 69.

"Consequently, while billing statements which 'are detailed in showing services, conversations, and conferences between counsel and others' are protected by the attorney-client privilege (Licensing Corporation of America v. National Hockey League Players Association, 135 Misc.2d 126, 127-128 [Sup. Ct. N.Y.Co. 1992]; see, De La Roche v. De Law Roche, 209 A.D.2d 157, 158-159 [1st Dept. 1994]), no such privilege attaches to fee statements which do not provide 'detailed accounts' of the legal services provided by counsel..."

It was also contended that the records could be withheld on the ground that they constituted attorney work product or material prepared for litigation that are exempted from disclosure by statute [see CPLR, §3101(c) and (d)]. In dealing with that claim, it was stated by the court that:

"...in order to uphold respondent's denial of the FOIL request, the Court would be compelled to conclude that the descriptive material, set forth in the law firm's monthly bills, is uniquely the product of the professional skills of respondent's outside counsel. The Court fails to see how the preparation and submission of a bill for fees due and owing, not at all dependent on legal expertise, education or training, can be 'attribute[d]...to the unique skills of an attorney' (Brandman v. Cross & Brown Co., 125 Misc.2d 185, 188 [Sup. Ct. Kings Ct. 1984]). Therefore, the Court concludes that the attorney work product privilege does not serve as an absolute bar to disclosure of the descriptive material. (See, id.).

"However, the Court is aware that, depending upon how much information is set forth in the descriptive material, a limited portion of that information may be protected from disclosure, either under the work product privilege, or the privilege for materials prepared for litigation, as codified in CPLR 3101(d)...

"While the Court has not been presented with any of the billing records sought, the Court understands that they may contain specific references to: legal issues researched, which bears upon the law firm's theories of the landfill action; conferences with witnesses not yet identified and interviewed by respondent's adversary in that lawsuit; and other legal services which were provided as part of counsel's representation of respondent in that ongoing legal action...Certainly, any such references to interviews, conversations or correspondence with particular individuals, prospective pleadings or motions, legal theories, or similar matters, may be protected either as work product or material prepared for litigation, or both" (emphasis added by the court).

Finally, it was contended that the records consisted of intra-agency materials that could be withheld under §87(2)(g) of the Freedom of Information Law. That provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

The court found that much of the information would likely consist of factual information available under §87(2)(g)(i) and stated that:

"...the Court concludes that respondent has failed to establish that petitioner should be denied access to the descriptive material as a whole. While it is possible that some of the descriptive material may fall within the exempted category of expressions of opinion, respondent has failed to identify with any particularity those portions which are not subject to disclosure under Public Officers Law §87(2)(g). See, Matter of Dunlea v. Goldmark, supra, 54 A.D.2d 449. Certainly, any information which merely reports an event or factual occurrence, such as a conference, telephone call, research, court appearance, or similar description of legal work, and which does not disclose opinions, recommendations or statements of legal strategy will not be barred from disclosure under this exemption. See, Ingram v. Axelrod, supra."

In short, although it was found that some aspects of the records in question might properly be withheld based on their specific contents, a blanket denial of access was clearly inconsistent with law, and substantial portions of the records were found to be accessible. As I understand your request, it was not as detailed as the request at issue in Orange County Publications. It appears that your request involves amounts expended. In my view, those aspects of the records would clearly be available.

With regard to tests or similar records concerning the toxicity or hazardous nature of the Gache site, I believe that they could be characterized as "intra-agency" materials, whether they were prepared by Town officials or perhaps by consultants retained by the Town [see Xerox Corporation v. Town of Webster, 65 NY 2d 131, 490 NYS 2d 488 (1985)]. Therefore, insofar as they consist of statistical or factual information, they must be disclosed, unless a different ground for denial applies. Of possible significance in that regard is §3101(d) of the CPLR concerning material prepared for litigation. Based on the judicial interpretation of the Freedom of Information Law, if records are prepared solely for litigation, they would be exempted from disclosure pursuant to §3101(d); nevertheless, if records are prepared for multiple purposes, one of which might include eventual use in litigation, the statutory exemption from disclosure could not be validly be asserted [see Westchester Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)].

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Robert Weininger, Town Attorney